Axiom Advocates News

Adjudication under the Scheme - what is the meaning of “at the same time”?

28 March 2018

In the recent case of Pentland Investments Ltd v Aitken Turnbull Architects Limitedthe pursuer (the employer) started separate adjudication proceedings simultaneously against its architect and its engineer. Through the adjudications the pursuer sought to apportion liability between the two professionals, and payment of damages from each of the amount they were respectively said to be responsible for, in respect of defects in the employer’s refurbished hotel.

The same adjudicator was appointed in each adjudication. On learning of this, the architect immediately informed the adjudicator that it did not consent to him adjudicating upon both disputes at the same time, and asked him to resign. The adjudicator refused to resign and proceeded to issue a decision, which the pursuer then sought to enforce against the architect in a commercial action in the Sheriff Court.

Paragraph 8(2) of Part I of the Scheme for Construction Contracts provides:

“The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on related disputes under different contracts, whether or not one or more of those parties is a party to those disputes.”

The defender argued that paragraph 8(2) prevented the adjudicator from deciding related disputes under different contracts at the same time in more than one adjudication process, without the consent of all the parties to those disputes. The architect had not given consent. The adjudicator had therefore acted without jurisdiction.

The pursuer argued that paragraph 8(2) merely prevented the adjudicator from deciding related disputes under different contracts at the same time in a single adjudication process, without the consent of all parties to those disputes. The adjudicator therefore had jurisdiction, as he had not sought to combine the two adjudications into a single adjudication process and had kept them separate.

The Court, following English authority in the absence of any previous Scottish authority on the point, upheld the defender’s argument and refused enforcement of the adjudicator’s decision on the basis that the adjudicator lacked jurisdiction.

The judgment is a helpful confirmation, albeit at Sheriff Court first instance level, of the proper interpretation of paragraph 8(2) of the Scheme and the limited circumstances in which an adjudicator can adjudicate upon related disputes under different contracts at the same time.

The pursuer was represented by Gavin Walker Q.C. and the defender by Alasdair McKenzie, advocate, both of Axiom Advocates.